Employee’s covert recording of a HR meeting held not to be gross misconduct

29th July 2019

Employee’s covert recording of a HR meeting held not to be gross misconduct

With most mobile phones and other electronic devices enabling individuals to record meetings discretely, there is an increasing risk that internal meetings or hearings could be recorded by employees. The Employment Appeal Tribunal (EAT) has recently considered whether an employee’s failure to inform her employer that she was making a recording will amount to misconduct. We take a look at how the EAT reached its decision and what employers can do to avoid covert recordings.

In the case of Phoenix House Ltd v Stockman & Another, the Claimant was told to leave the office of the Finance Director when she interrupted his meeting and demanded to know what the meeting was about. As she was upset, the Claimant went to see the Chief Executive and Head of HR. The Claimant covertly recorded this conversation.

After a period of time the Claimant was told that there was an irretrievable break down in the working relationship and therefore her employment was being ceased for some other substantial reason.

The Claimant claimed unfair dismissal and sought to use transcripts of the covert recording at her initial meeting with the Chief Executive and Head of HR. The Employment Tribunal held that it was unfair dismissal and the employer appealed stating that had they known that the Claimant had covertly recorded the conversation she would have been dismissed for gross misconduct. As a result her compensation should be reduced to nil.

The Employment Appeal Tribunal stated that the purpose and content of the recording was relevant. In this case the EAT agreed with the Tribunal’s view that the Claimant had recorded the meeting to protect herself and not to record confidential information of the company. The EAT had also noted that covert recordings were not included as an example for gross misconduct in the employer’s policy.

The EAT concluded that, in this particular case, the covert recording did not amount to gross misconduct so the Claimant’s award should not be reduced to nil.

However, the Tribunal stated that it was ‘good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances - and it will generally amount to misconduct not to do so’. Covertly recording meetings would not necessarily amount to gross misconduct but could do so in the following circumstances:

  • where the employee was trying to entrap the employer rather than genuinely seeking to defend themselves;
  • where the employer has informed the employee that a recording must not be made and the employee breaches that instruction by making a covert recording; or
  • where the recording is of highly confidential or personal information relating to the employer or another employee.

Employer Considerations

Employers may wish to consider amending their policies to state that covertly recording internal meetings and hearings may amount to gross misconduct.


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